PAYTON v. State of Miss., 2009-KA-00332-COA.

• Decision Date: 12 August 2010
• Docket Number: No. 2009-KA-00332-COA.,2009-KA-00332-COA.
• Citation: 41 So.3d 713
• Parties: Glenn PAYTON, Jr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

41 So.3d 713

Glenn PAYTON, Jr., Appellant, v. STATE of Mississippi, Appellee.

No. 2009-KA-00332-COA.

Court of Appeals of Mississippi.

December 1, 2009.

Rehearing Denied April 20, 2010.

Certiorari Denied August 12, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Glenn Payton, Jr., (Pro Se).

George T. Holmes, Jackson, attorneys for appellant.

Office of the Attorney General by Charles W. Maris, Jr., attorney for appellee.

Before KING, C.J., BARNES and ROBERTS, JJ.

KING, C.J., for the Court.

¶ 1. Glenn Payton, Jr., was convicted in the Circuit Court of Forrest County of statutory rape of a fifteen-year-old girl and sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Payton appeals his conviction and sentence. Payton's appellate counsel has filed a Lindsey brief, asserting that he is unable, in good faith, to present any arguable issues for appellate review.¹ Acting pro se, Payton has filed a brief, raising five issues for the Court's review:

I. Whether Payton's indictment was defective;

II. Whether the indictment was improperly amended;

III. Whether Payton was deprived of his right to a speedy trial;

IV. Whether there was prosecutorial misconduct; and

V. Whether Payton received ineffective assistance of counsel.

Finding no error, we affirm Payton's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. For seven years, Payton lived with a girlfriend and her three daughters in Hattiesburg, Mississippi. In January 2007, Payton's girlfriend realized that A.V., her fifteen-year-old daughter, was pregnant.² A.V. told her mother that Payton, who was thirty-seven years old at the time, was the father of her child. A.V.'s mother contacted the Hattiesburg Police Department and filed charges against Payton, alleging that he had sex with her underage daughter.

Subsequently, A.V.'s child was born in April 2007.

¶ 3. Detective Jack Raynor testified that the police department had a difficult time apprehending Payton. In March 2008, Detective Raynor learned that Payton had misled the police to believe that he was Terrance Payton, his brother, and that Payton was confined in the Forrest County Jail for Terrance's probation violation. Upon learning this information, Detective Raynor had Payton fingerprinted to determine his true identity. After Payton's identity was verified, he was served with a warrant for his arrest for the statutory rape of A.V. Detective Raynor also obtained a court order to collect DNA samples from Payton to determine whether Payton was the father of A.V.'s child.

¶ 4. On May 19, 2008, Payton was originally indicted for statutory rape of a child under fourteen years of age. However, A.V. was actually fifteen years old at the time of the incident. After realizing the mistake, the State presented the case to the grand jury and obtained a second indictment against Payton on August 19, 2008, for the statutory rape of a child who was at least fourteen years of age but under sixteen years of age. Thereafter, an order of nolle prosequi was entered for the first indictment. However, the second indictment still contained a mistake—the subsection number of the charging statute was incorrect.

¶ 5. On September 18, 2008, Payton was arraigned, and his trial date was set for November 5, 2008. Payton filed a motion for a speedy trial on October 18, 2008. Due to the trial court's docket, Payton's trial did not commence in November. On December 16, 2008, an agreed order was entered, resetting Payton's trial date for January 7, 2009. The State filed a motion to amend the indictment on January 6, 2009, requesting that the trial court allow the State to correct the subsection number of the charging statute. The trial court granted the State's motion to amend the indictment.

¶ 6. As agreed, Payton's trial commenced on January 7, 2009. During the trial, A.V. described sexual encounters between herself and Payton. Based on the DNA test results, an expert testified that Payton was indeed the father of A.V.'s child. Payton testified in his defense and admitted having sexual relations with A.V., claiming that A.V. enticed him to have sexual relations with her.

¶ 7. On January 7, 2009, Payton was convicted of statutory rape. Initially, the trial court sentenced Payton to life in prison. However, the trial court, upon its own motion, brought Payton back to court the very next day to correct his sentence. Payton was then sentenced to thirty years in the custody of the MDOC. Thereafter, Payton filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Aggrieved, Payton timely filed his notice of appeal.

ANALYSIS

I. Lindsey Brief

¶ 8. In Lindsey, the supreme court modified the process that must be followed when appellate counsel does not believe that his client has any arguable issues to present on appeal. The procedure is as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7)[.]

(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and circumstances surrounding [the] arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.

(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.

(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations omitted) (emphasis added).

¶ 9. In the present case, appellate counsel filed a Lindsey brief, indicating that he had diligently searched the procedural and factual history of Payton's case and scoured the record for any arguable issues that could be presented to this Court on appeal. Appellate counsel specifically stated that he had examined: (1) amendments of the indictment, (2) any speedy-trial violations, (3) challenges of jurors for cause, (4) rulings of the trial court, (5) any possible ineffective assistance of counsel, (6) jury instructions, (7) admission of exhibits, and (8) any misrepresentation of the law in sentencing. However, appellate counsel could not find any error that he could present to this Court in good faith. Appellate counsel informed Payton of his right to file a pro se brief, and Payton has filed a very thorough brief with this Court.

¶ 10. After a detailed review of the record, we find that the circumstances do not warrant appellate counsel to submit supplemental briefing, and we affirm Payton's conviction and sentence. For Payton's benefit, the Court will now address the merits of his claims.

II. Payton's Assignments of Error

A. Defective Indictment

¶ 11. Payton argues that his first indictment was defective because it charged him with statutory rape of a child under fourteen years of age when A.V. was actually fifteen years of age at the time of the incident. Payton also argues that he was prejudiced by the fact that the first indictment was not nol prossed until after the second indictment was returned by the grand jury. "Whether an indictment is defective is a question of law, and we review such questions of law under a de novo standard." Graham v. State, 967 So.2d 670, 673 (¶ 8) (Miss.Ct.App.2007). Most importantly, the indictment must contain the essential elements of the crime with which the accused is charged. Belk v. State, 8 So.3d 272, 274 (¶ 9) (Miss.Ct.App. 2009).

¶ 12. During a motions hearing before the trial court, the State admitted that Payton's initial indictment was defective because he was indicted for statutory rape of a child who was under fourteen years of age. However, "[u]nder Mississippi law, the entry of a nolle prosequi unconditionally dismisses a criminal indictment, but without prejudice to the [S]tate to seek re-indictment." In re C.R., 879 So.2d 1119, 1121 (¶ 8) (Miss.Ct.App.2004) (quoting Beckwith v. Anderson, 89 F.Supp.2d 788, 792 (S.D.Miss.2000)). The State obtained a second indictment that charged Payton with the proper offense, and the first indictment was nol prossed.

¶ 13. The supreme court has held that a defendant, who was indicted for capital murder, was not prejudiced by the return of a second indictment before the entry of nolle prosequi on his first indictment. Mitchell v. State, 792 So.2d 192, 200 (¶ 25) (Miss.2001). In Mitchell, the supreme court considered whether the defendant had been subjected to multiple prosecutions or any harm that may have resulted from the simultaneous indictments. Id. Applying this analysis to the present case, we do not find that Payton was prejudiced by the return of his second indictment before the first indictment was nol prossed. Based on the foregoing, we find that this issue is without merit.

B. Amendment to the Indictment

¶ 14. Payton argues that the State improperly amended his second indictment by changing the subsection number of the charging statute. "The law is clear that an indictment may not be amended if the amendment is one of substance,...